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Revision No. 1726 of 1962‑63, decided on 22nd November 1963, District Rawalpindi.

Amendment‑Not to be allowed if affecting cause of action.

S. 77(3)‑Suit can be treated as application under S. 3, Punjab Protection and Restoration of Tenancy Rights Act (X111 of 1950).

Abid Hassan Minto for Petitioner.

Zaidi, on behalf of Zahir‑ul‑Islam for Respondent.

The brief facts of this case are that the respondent‑landlords brought a suit for ejectment of the petitioner‑tenant under section 77 (3) (a) of the Tenancy Act read with paragraph 26 of Martial Law Regulation No. 64. The ground taken was that the petitioner‑tenant had defaulted in the payment of rent and was, therefore, liable to ejectment. While the suit was proceeding, paragraph 26 of the Regulation, which constituted transitional provisions regarding ejectment of tenants, was withdrawn, so that ordinary law relating to tenancy of land once again came into force. The case had therefore to be considered under the Punjab Protection and Restoration of Tenancy Rights Act, 1950 as subse quently amended. The tenants applied for dismissal of the suit on the ground that the law under which it had been brought had been withdrawn and the suit was no longer competent. The land lords made a counter‑application for an amendment of the plait asking for permission to add another cause of action which pact become available under the first proviso to clause (iv) of sub section (i) of section 3 of the Punjab Protection and Restoration of Tenancy Rights Act i.e. to say that they should be allowed to eject the tenant on the ground that they required the land for personal cultivation. This amendment was allowed. The tenant went up in appeal and subsequently in revision against this older but both of these were rejected. A second revision has now been preferred.

The main ground taken before me is that an amendment of a plaint which changes the nature of the suit and brings in another cause of action inconsistent with the original and different in character from it should not be allowed. This is a correct statement of the ordinary law on the subject of amendment of pleadings. An amendment permitting the landlords to seek ejectment of the tenant on grounds of self‑cultivation is substantially different from the original one which was that the tenant had failed to payment in accordance with the terms of the tenancy. In case the tenant is sought to be ejected on the new ground the landlords can proceed under the Punjab Protection and Restoration of Tenancy Rights Act, which at the time the suit was brought was not in force. It is operative now and as the Act speaks of an application and not a suit I would direct that the Revenue Officers below may treat the original plaint as an application under section 3 of the Act. However, for the reasons given above the proposed amendment is not allowed and the petition is accepted to that extent.

K. M. A.

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